In Re the Marriage of Larimore
362 P.3d 843
Kan. Ct. App.2015Background
- David and Janice Larimore divorced in 2002; the divorce decree incorporated a settlement dividing retirement accounts and awarded Janice 40% of David’s Boeing retirement accounts.
- A QDRO was never prepared or filed; nearly 12 years later (2014) Janice sought a QDRO to enforce the divorce decree's division.
- David moved to declare the retirement division void as extinguished under Kansas dormancy statute (K.S.A. 60-2403), asserting Janice failed to execute or renew the judgment within the statutory period; he also asserted laches/estoppel.
- Janice argued ERISA/regulations preempt state dormancy, that property divisions are not subject to dormancy, and that dormancy was tolled because benefits were not yet payable so enforcement by legal process was impossible.
- The district court held the divorce decree’s retirement-division judgment was subject to Kansas dormancy, had become dormant and then extinguished because Janice neither filed a QDRO nor a renewal affidavit within the applicable period, and denied Janice’s motion to compel David’s cooperation.
- The Kansas Court of Appeals affirmed: ERISA does not create the right to the benefit (state judgment does), QDROs are the mechanism to enforce such rights but do not create them, and tolling under K.S.A. 60-2403(c) did not apply because filing a QDRO was legally available before benefits became payable.
Issues
| Issue | Plaintiff's Argument (Janice) | Defendant's Argument (David) | Held |
|---|---|---|---|
| Whether a divorce court’s division of retirement benefits is a "judgment" subject to Kansas dormancy/extinguishment | The division is a property transfer not subject to dormancy; once divided, the property interest endures | The division is a judgment subject to dormancy; enforcement requires action (QDRO) | The court held the division is a judgment subject to dormancy and extinguishment under K.S.A. 60-2403 |
| Whether ERISA or federal regs preempt state dormancy rules, barring extinguishment | 29 C.F.R. §2530.206(c) shows no federal time limit on QDROs so federal law preempts state dormancy | State dormancy governs whether a state-created right still exists to be enforced via QDRO | The court held ERISA does not create the underlying right; ERISA/QDRO process does not preempt application of state dormancy to the state judgment |
| Whether filing a QDRO is required to "execute" the judgment for dormancy purposes or merely ministerial | A QDRO is ministerial; the underlying judgment was final and therefore not subject to dormancy until benefits payable | Enforcement required filing a QDRO; failure to file counts as failure to execute within dormancy statute | The court held the QDRO is the required legal process to execute the judgment; failure to file meant the judgment was not enforced and became dormant/extinguished |
| Whether K.S.A. 60-2403(c) tolls dormancy while benefits are not payable (i.e., until plan pay status) | Tolling applies because it was impossible to collect benefits until pay status; dormancy did not begin | Tolling does not apply because legal process to enforce (filing a QDRO) was available even before payments began | The court held (c) does not toll here; enforcement by legal process (QDRO) was available, so dormancy ran and extinguished the judgment |
Key Cases Cited
- Bandel v. Pettibone, 211 Kan. 672 (discusses required certainty and enforceability of judgments)
- Bank IV Wichita v. Plein, 250 Kan. 701 (interprets tolling/stay language in K.S.A. 60-2403(c))
- Long v. Brooks, 6 Kan. App. 2d 963 (describes dormancy/revivor periods and requirements)
- Trustees of Directors Guild of America v. Tise, 234 F.3d 415 (9th Cir.) (QDROs as exception to ERISA anti-alienation and preemption rules)
- In re Marriage of Cray, 254 Kan. 376 (discusses QDRO federal requirements and interplay with state divorce decrees)
- Cady v. Schroll, 298 Kan. 731 (standard of review for statutory interpretation)